Court says census case is ‘premature’
WASHINGTON – The U.S. Supreme Court on Friday gave the Trump administration a few more weeks to try to exclude undocumented immigrants from the census count used to apportion seats in Congress, in part because the effort may prove fruitless.
The quick decision in a case argued Nov. 30 signaled the court’s hope that it can avoid a more consequential ruling on an issue that could affect the balance of political power in Congress for the next decade.
The decision was unsigned, but the court’s three liberal justices dissented. They would have struck down the policy as unlawful.
President Donald Trump announced in July his intention to exclude up to 10.5 million undocumented immigrants from the tabulation on the theory that they are not permanent residents and do not merit political representation.
But counting them is difficult, and the Census Bureau has said it might not complete the work in time for Trump to submit a report to Congress before leaving office.
“At present, this case is riddled with contingencies and speculation that impede judicial review,” the court’s majority opinion said. “To begin with, the policy may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here.
“Everyone agrees by now that the government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status,” the majority said.
Associate Justice Stephen Breyer, writing for himself and the court’s two other liberals, said the case was ripe for a decision now.
“The plain meaning of the governing statutes, decades of historical practice and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status,” Breyer said. “The government’s effort to remove them from the apportionment base is unlawful, and I believe this court should say so.”
He noted that the Census Bureau likely can include immigrants housed in Immigration and Customs Enforcement detention centers, those subject to final deportation orders, some 700,000 recipients of Deferred Action for Childhood Arrivals protection and about 3.2 million more in removal proceedings.
Dale Ho, director of voting rights for the American Civil Liberties Union, which challenged Trump’s policy, vowed that if it’s implemented, “We’ll be right back in court challenging it.”
Trump’s plan, if implemented in sweeping fashion, could strip California and perhaps other states of seats in the House of Representatives. States with large numbers of undocumented immigrants tend to lean Democratic, while those that could gain House seats are majority-republican.
The justices agreed to hear and decide the case quickly because time is running out on the 2020 census process. Commerce Secretary Wilbur Ross’ report to the president is due Dec. 31. Trump has about 10 days after that to report to Congress on the number of House seats allocated to each state.